Recommended Posts

We were pulled over in the city the other day by an aggressive cop with his hand on his taser! Once he realised that the driver was an old codger and not a youngster he became more relaxed!

The car that we were driving was jointly registered and one of the owners has his licence suspended! Hence the pull over....

It's interesting to know what your rights are especially as they differ from different countries and even different states...

What are your rights? What South Australian law says about dealing with police and authority figures

Scott Moore

The Advertiser

July 15, 2015 12:30PM

There are countless scenarios that bring law-abiding citizens into contact with the police every day. Picture: Campbell Brodie.

SCENARIO 1: The P-plate driver is pulled over by police, who tell him they want to search his vehicle.

He takes it as an instruction, not a request. They search the car and find nothing — as he knew they would. Then they get back into their car and drive off, leaving him to clean up the mess they have made of his vehicle.

SCENARIO 2: The young man is at a ski party with friends on the River Murray. Two officers approach the group and ask who owns the black four-wheel-drive vehicle.

He confirms it is his and they say they are undertaking searches, looking for drugs. Can they look inside his vehicle? No, he says.

Their demeanour darkens immediately.

“Why not?” they ask. “Do you have something to hide?”

“No,” he replies, “I just don’t think you have any cause to search it”.

“Name?” the stern-faced officer asks. He tells them.

“Address?” He tells them.

“Occupation?” Solicitor, he replies.

“Have a nice day,” they say, walking away.

These situations both occurred in real life but had different outcomes. The reason — the P-plate driver did not understand his rights, the solicitor did.

Every day members of the public interact with police and other people in authority.

Most of these encounters are polite and professional but sometimes things go wrong — usually because the people involved do not understand their rights and responsibilities when talking to officers.

Let’s look at the first scenario. The P-plate driver had not committed any offence, nor had he given the officers any reason to search his car. The P in P-plater does not stand for probable cause.

He was within his rights to ask the police what cause they had to search his car. In the absence of a good reason, he could have refused.

In the second scenario, the solicitor remained calm and defended his rights. He could have allowed the police to search his car — he had nothing to hide. But he saw no reason to do so.

He remained polite and provided them with information they wanted. He realised that just because an officer requests something does not necessarily mean that has to be honoured.

Had he agreed to the search, it would have immediately become legal.

Today, advertiser.com.au starts a series on your rights, after taking advice from the Law Society of SA.

First a couple of general points.

Police are not the enemy. No matter how you might feel about broader policing issues such as, say, the application of road laws, the officer before you is a person trying to do a job. And like most people, he or she will respond better to civility than aggression.

Second, the best advice is to stay calm. Like our solicitor above. Don’t panic and don’t get angry. And definitely don’t swear.

-------------------------

Being polite and keeping calm when dealing with police is always a good idea. Picture: Mark Brake

An officer approaches you in the street and wants you to answer some questions. How much do you have to say?

Generally speaking you don’t have to answer an officer’s questions. In some situations you need to give basic information, such as your name, address, date of birth and business address. For instance if an officer wants details of a motorist’s name and address, they must be supplied. An officer can demand your personal details if he or she has reasonable cause to suspect you have committed or are about to commit an offence or if you may be able to assist in the investigation of an offence or suspected offence.

OK, I’ve given the officer the information requested. Do I have to go to the police station with him or her?

Unless you have been arrested, no. You can simply walk away. You can only be arrested if there are reasonable grounds to suspect you have broken the law or are about to. If you are walking the streets in a balaclava, you’re probably in trouble. You can also be nicked for refusing to obey certain police directions, such refusing to move on if you’ve been loitering.

A patrol has pulled over my car and now they want to search it. Do I have to let them? And if they make a mess of my vehicle, do they have to return it to its original condition?

Presuming they don’t have a warrant, they can only search the vehicle if they have reasonable grounds to suspect it contains illegal items. So you may want to ask them what grounds they have for the search. A fishing expedition doesn’t count. If they do search your vehicle, they don’t have to tidy up afterwards. They can even use “reasonable force” to open and search locked or hard to access compartments. There’s that word “reasonable” again. If you feel they have gone too far in their search and made too much mess, request their name and ID number. Take a photo and make a complaint to the Police Ombudsman’s office.

My underage son has been pulled over and they want to search his car. Do I get a say in this?

The Law Society says the driver should be given the opportunity to contact parents before the search starts. Most police would have no problem with this. You don’t get to tell the police they can’t search the car. Your son, as mentioned above, can ask them what reason they have to think a search is necessary.

This copper wants to search me. He doesn’t have a warrant. Do I have to let him?

Only if he has reason to believe you are holding illegal or illegally obtained items. You can ask him or her to state why they want to search you.

There are a couple of police at my door asking to enter and search my home. I’m not keen. Can I be in trouble if I don’t let them?

Ask to see a warrant. Just like in the movies. If they do have a warrant, stand aside and don’t give them grief. Police do have the power to search properties without a warrant where they have reasonable cause to suspect that stolen goods or evidence of an offence is present. Under the Firearms Act they also have the power to enter any premises where they suspect on reasonable grounds that there may be illegal, unsafe or unregistered firearms. If those grounds don’t apply and they don’t have a warrant, it’s up to you whether you let them in.

Now there’s some council bloke wanting to hassle me. Can I tell him to get off my property?

Yes you can. Council authorities need to give two days’ business notice and have your consent to enter your property, unless they have a warrant. You can send police packing too, unless they have a warrant, are investigating a crime or have reasonable grounds to believe an offence is being committed at the property. If they can hear bloodcurdling screams from inside, they’re probably not going to walk away when asked.

Speaking of council officers, do I have to give them my details on request?

Again it depends on the reason. If they just want to ask you out on a date, no. If they have reason to believe an offence has been committed or is about to be then you have to give them your details. If, say, your dog is off the leash where he or she shouldn’t be, the inspector can demand your details.

What about a train inspector?

Yes, these folks are what we call prescribed officers and can make a passenger produce identification and state their full name and address if they have a reasonable belief that they have committed an offence. So if you don’t have a ticket, don’t argue.

Here I am, just hanging out and some officer comes up and tells me to move on. It’s a free country — I don’t have to go, do I?

Sorry, but you do. It is unlikely an officer will tell you to move on unless you are loitering — or if he or she has reason to believe that you have committed or about to commit a crime in a public place, are disturbing the peace or obstructing traffic or pedestrians, or if your safety, or that of others, is in danger. As they say in the movies: “You don’t have to go home but you can’t stay here.” Of course, the officer should tell you why you’re being moved on and “you’re an idiot” is not nearly specific enough.

I’m really not happy with my treatment from this cop. I’ve asked for their personal details. Do they have to give them?

Absolutely! If you ask them (politely would be good) for their details, they must produce their identification or state their surname, rank and police ID number.

I may have had a couple of beers, but the patrol car didn’t catch up with me until I got onto my own property. Do I have to supply a breath test?

Hope it’s not too many beers, because yes, you do. If they have reasonable grounds to breath-test you — like they saw you driving badly on public roads — they can demand a test.

Can a police officer follow you on to federal land?

Probably not unless they are special constables with federal authority.

I may have seen a crime. Do I have to report it or make a witness statement?

No, though you’d have to ask yourself why you wouldn’t want to do so.

I’ve heard that if my daughter is with her friend and that friend is caught shoplifting they can both be convicted. Is that so?

Nope. There is no guilt by association. If she wasn’t involved in the offence (police would have to prove she was), arresting her would probably be a waste of everyone’s time.

Does a minor detained for possible shoplifting have to answer any questions before their parents arrive?

No. They should demand their parents be present. If they do speak, their answers may be admissible in court, depending on their age and if police acted fairly in questioning them.

Can store security physically detain you if they suspect you of shoplifting?

No. Not unless they catch you in the act. If they saw you, you’re in big trouble. Similarly, unless you have been seen shoplifting, you don’t have to reveal the contents of your bag. They can ask, but you can refuse.

I hate having my bag searched in shops. They are treating me like a criminal. Do I have to suffer this indignity?

No. Even if they have a sign telling you that you may be asked to display the contents of your bags before leaving, they can’t force the issue (unless, of course, they saw you nicking stuff). What they can do, however is refuse you entry next time you want to go shopping there. And the time after that, and the time after that, and the time after that etc.

Some fridge-with-eyes bouncer is trying to kick me out of the pub. Can he lay hands on me?

Pretty much. But only if you’ve done something wrong and he has to be sensible about it. He can’t just biff you a couple of times, then toss you out, unless he’s defending himself (against more than just your rapier-like wit). He can use “reasonable force” to kick you out if you’ve been causing trouble (or if he’s finally figured out you are underage). He can also detain if you have committed offence on the property. Of course your definition of reasonable force and his may differ. Better not to take the chance. You could end up hurt, or arrested.

Can I make a citizen’s arrest?

Yes, but be careful. You can use our old friend, reasonable force, to detain someone for disturbing the peace or breaking the law. But think long and hard before you put yourself in harm’s way. You could be hurt or find yourself facing charges if you go too far. Better in most cases to leave it to the professionals.

My next door neighbour is taking photos of me in my yard. Surely that’s an invasion of my privacy and they can be charged!

Afraid not. There is no law protecting in SA protecting people against being photographed without permission. That nosy neighbour can even secretly snap you. Of course there are laws against indecent filming — taking photos or videos of people in situations where you could reasonably expect privacy. Like when you’re undressed, having sex or going to the toilet. Try not to do any of these things, however in your front yard!

For the record, we asked police for their response to this article. A police spokesman responded with this statement: “SA Police officers are well versed in the application of their lawful authorities and obligations. Police will provide reasonable explanation of their action as fits each circumstance. Police expect co-operation from anyone asked to comply with a lawful direction.”

It’s important to note that the information provided in this article is general and does not cover every detail of the law. For legal advice on a specific circumstance, you should consult a lawyer.